If Tribunal Passed An Order In Absence Of Appearance By The Appellant, It Had To Pass The Order On Merits
November, 12th 2008
Issuing Authority/Forum: HC (Gauhati)
Rajendra Prasad Borah vs ITAT and Ors.
Citation 302 ITR 243
Duty of Tribunal – Passing ex-parte order
Where the Tribunal passed an order in absence of appearance by the Appellant, it had to pass the order on merits. The Tribunal could not dismiss the appeal for default appearance by the appellant. The case was remanded to Tribunal.
A.K. Roy Choudhury, S. Roy Choudhury and Manash Haloi for the Petitioner
U. Bhuyan, B. Chakraborty and K. Medhi for the Respondent
This petition under article 226 of the Constitution of India registers a challenge to the order dated August 23, 2007, passed by the learned Income-tax Appellate Tribunal, Guwahati Bench, Guwahati (hereinafter referred to as “the Tribunal”), dismissing four appeals being I. T. A. Nos. 29/Gau/2006, 30/Gau/2006, 35/Gau/2006 and 36/Gau/2006 filed by the petitioner-assessee before it against the assessment orders dated December 21, 2005, December 21, 2005, December 20, 2005 and December 20, 2005, for the assessment years 1990-91, 1991-92, 1988-89 and 1989-90, respectively.
I have heard Mr. A. K. Roy Choudhury, senior advocate, assisted by Ms. S. Roy Choudhury and Mr. Manash Haloi, advocates, for the petitioner, and Mr. U. Bhuyan, learned standing counsel, for the Revenue assisted by Mr. B. Chakraborty and Ms. K. Medhi, advocates.
The unrebutted pleaded facts in short as would be necessary for disposing of the present petition are that, the petitioner-assessee being aggrieved by the aforementioned orders of the Assistant Commissioner of Income-tax, Circle II, Guwahati, preferred the above appeals before the Tribunal under section 253 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”). The learned Tribunal by the impugned order dismissed the appeals solely on the ground that the appellant-assessee had failed to appear before it on the date fixed for hearing. This course of action of the learned Tribunal, as the impugned order reveals, was purportedly by invoking rule 19(2) of the Income-tax (Appellate Tribunal) Rules, 1963 (hereinafter referred to as “the Rules”). The learned Tribunal also sought to draw sustenance for its decision from the verdict rendered by the Income-tax Tribunal, Delhi Bench, Delhi, in CIT v. Multiplan India (P.) Ltd.  38 ITD 320.
Mr. Roy Choudhury has argued that having regard to the prescription of section 254 of the Act and the state of law as contained in rule 24 of the Rules, the impugned decision suffers from patent error of law and is liable to be adjudged non est, ineffectual, null and void. According to learned senior counsel, even if the appellant-assessee was absent before the Tribunal, the only course open to it was to dispose of the appeal on the merits. In any view of the matter, therefore, Mr. Roy Choudhury urged that the impugned order on the face of the record is illegal and liable to be interfered with in the interest of justice. In support of his contention, learned senior counsel has placed reliance on the decision of the apex court in CIT v. S. Chenniappa Mudaliar  74 ITR 41 as well as of this court in The Assam Tribune v. CIT  285 ITR 452.
Mr. Bhuyan, learned standing counsel, for the Revenue does not dispute the proposition of law as projected by learned senior counsel for the petitioner and contends that, in the facts and circumstances of the case, the appeals may be ordered to be disposed of on the merits by the learned Tribunal. After hearing learned counsel for the parties and on a perusal of the provisions of law referred to hereinabove, it is more than apparent that the course adopted by the learned Tribunal in disposing of the assessee’s appeals in the manner as delineated in the impugned order, cannot be sustained. Apart from the fact that, section 254 (earlier section 33) of the Act makes it incumbent on the learned Tribunal to dispose of the appeals on merits as has been enunciated by the apex court in CIT v. S. Chenniappa Mudaliar  74 ITR 41, rule 24 as it stands, per se does not empower the learned Tribunal to dismiss an appeal for default in the absence of the appellant. The learned Tribunal’s reliance on the decision of the Income-tax Appellate Tribunal, Delhi, rendered in CIT v. Multiplan India (P.) Ltd.  38 ITD 320, is apparently misplaced in the teeth of the decision of the apex court in CIT v. S. Chenniappa Mudaliar  74 ITR 41.
In the above view of the matter, the impugned order of the learned Tribunal is interfered with and is quashed. The learned Tribunal would decide the appeals on the merits in accordance with law. As the assessment amongst others relates to the assessment year 1988-89, the learned Tribunal would make an endeavour to dispose of the appeals as expeditiously as possible, preferably within a period of six (6) months herefrom. No costs.